When A 12 Point Driving Ban Isn't A 12 Point Driving Ban

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The Law Of... totting up penalty points

Earlier this year it was revealed that, despite 'totting up' 12 penalty points or more, there were approximately 8600 motorists driving on the UK's roads. Julie Robertson, Head of Motoring Offences at Simpson Millar, examines how it is legally possible to continue driving, even when you've reached the automatic ban threshold.

The Law Of... totting up penalty points

If you've managed to accrue (tot up) 12 points on your licence within the space of 3 years, you might be forgiven for thinking it'll be the bus for the next 6 months. But, as the song says: it ain't necessarily so.

There is a way to avoid disqualification, particularly if you have an expert motoring offence solicitor fighting your corner.

Firstly though, how does the totting up system work?

What is Totting Up?

If you commit a motoring offence and accept the allegation, your licence will be endorsed with penalty points, which are taken into account by Courts for 3 years. The number of points you receive depends upon the severity of the offence, with a minimum of 3 points covering most minor infractions and between 3 and 6 covering speeding offences.

If you commit further motoring offences within the space of 3 years, therefore placing you at risk of reaching or exceeding 12 penalty points, you will be summoned to Court for the consideration of a 6 month driving ban.

So, for example, you commit 2 minor offences and 2 speeding offences within the 3 year timeframe. This results in a total of 6 points for the minor ones (2 x 3) and 6 points for the speeding ones (2 x 3). These are added together, resulting in the 12 points and a mandatory ban unless, of course, you are able to avoid a driving disqualification by successfully arguing that exceptional hardship would be caused.

So how do some motorists manage to continue driving?

Avoiding Mandatory Disqualification

There have been instances in the news of drivers avoiding the '12 points and you're out' punishment, such as Stone Roses lead singer, Ian Brown, who faced a ban after hitting the 12 point threshold, but was treated with leniency by the court. Or the case of one driver from Basildon, who totted up 42 points on his licence but didn't get it suspended.

In both of these instances, and invariably with the other 8600 or so currently remaining on the road, the defendants made a submission of exceptional hardship to the courts.

Exceptional Hardship

Unless it is a drink/drug driving offence, death by dangerous driving or something equally serious where the ban is obligatory, drivers who fall foul of the totting up procedure can claim they will face exceptional hardship should they lose their licence for the designated period.

The mandatory ban can therefore be avoided if the Court is able to use its discretion in totting up cases. It is able to do so where a motorist has proven that a disqualification will result in exceptional hardship rather than mere inconvenience.

When before the court, the motorist will be given the opportunity to plead for leniency and not to have their licence taken away. They must show that the effects a disqualification will have upon them and, where relevant, any third parties will go far beyond the realms of what is reasonable. So simply pleading that hardship will be endured, or that a ban will lead to the loss of a job alone, will rarely suffice, as the whole point of a disqualification is to cause enough inconvenience to discourage the motorist from being brought before the courts again.

Julie comments:

"Many drivers find their livelihood, and indeed their homes, at risk due to amassing 12 or more penalty points on their licences, yet don't realise that the mandatory 6 month disqualification is not always mandatory."

"There is no strict definition of exceptional hardship to which a court can refer, so the decision is made on a case by case basis, but it is far from straightforward to successfully plead. Which is why seeking the advice of a specialist motoring offences solicitor with a good success rate in presenting arguments of exceptional hardship, is essential. This is because if it goes wrong in court, making a plea on appeal at the Crown Court is much more difficult to do."

"Depending upon what the court chooses to impose, the result of a successful plea for exceptional hardship will either be additional endorsements or a shorter ban."


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